The Hills Brothers Co.

National Labor Relations Board - Board Decisions

May 9, 1946

67 N.L.R.B. 1249 (N.L.R.B. 1946)

In the Matter of THE HILLS BROTHERS COMPANY and FOOD, TOBACCO,
AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA, CIO
Case No. 10-C-1678.-Decided May 9, 1946
DECISION
AND
ORDER
On November 21, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On April 16, 1946, the
Board heard oral argument at Washington, D. C. Only the respond-
ent appeared and participated in the argument.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following addition :
At the opening of the hearing before the Trial Examiner, counsel
for the Board moved to amend the complaint by adding the name of
Velma Manning to the list of alleged discriminatory discharges.
Counsel for the respondent objected to this motion on the grounds that
(1) no charge had been filed with the Board on behalf of Manning,
(2) the complaint could not be amended without 10-days' notice, to
which the respondent was entitled as a matter of right; and (3) the
respondent was not accorded sufficient time to prepare properly and
to defend successfully its position with respect to Manning. The
Trial Examiner, overruling the respondent's objections, granted the
motion to amend but instructed counsel for the Board not to offer any
evidence with respect to Manning until the following day. In except-
ing to the Trial Examiner's finding of discrimination in the discharge
of Manning, the respondent contends that the Trial Examiner's ruling
on the motion to amend the complaint amounted to a denial of due
process of law. We do not agree.
67 N L. R. B., No. 165.
1249
692148-46-vol. 67-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first two grounds of the respondent's exceptions have no merit
as a matter of law. Since the complaint, and not the charge, frames
the issues in any unfair labor practice proceeding, the respondent was
not prejudiced by the mere failure of the charge to include an allega-
tion as to Manning.' Nor was the respondent entitled, as a matter
of right, to a 10-day period in which to answer or to defend any issue
raised by the amendment of the complaint. According to Board
Rules and Regulations, a complaint may be amended at the bearing by
the Trial Examiner "upon such terms as may be deemed just." 2 Thus,
the ruling of the Trial Examiner was discretionary and, in the ab-
sence of a showing of an abuse of discretion by the Trial Examiner
or actual prejudice to the respondent,affords no basis for challenging
the validity of the hearing. That there is no such abuse or prejudice
in this case is clearly established by the following circumstances.
As mentioned above, the Trial Examiner directed counsel for the
Board not to offer any evidence with respect to Manning on the day
of the amendment. However, later during the same day, without
waiving his general objection, counsel for the respondent agreed to
permit the examination of Manning without further delay. At the
end of Manning's direct examination counsel for the respondent
requested permission to postpone cross-examination of Manning until
the following morning. This request was granted by the Trial Ex-
aminer. The next clay, the respondent cross-examined Manning,
and the Board rested its case at 12: 35 p. in. Whereupon, counsel for
the respondent requested a postponement until the following morning.
This request was also granted by the Trial Examiner. On the last
day of the hearing, the respondent introduced documentary evidence,
and produced witnesses, to defend Manning's discharge. At the con-
clusion of the respondent's case, counsel for the respondent gave no
indication that the respondent had not had a sufficient amount of time
to investigate and prepare properly the respondent's defense, or made
any further request for a continuance. Thus, it appears, and we find,
that not only was the respondent fully apprised of the new issue in-
volved, but that it had a full opportunity to meet the issue, and in fact,
did so. On the basis of the record, we find that the respondent has
made no showing of prejudice, and we accordingly affirm the Trial
Examiner's rulings.
In doing so on the ground that there was no prejudice or abuse of
discretion, we are constrained to observe that it would nevertheless
have been better practice for the Board's attorney to have moved to
amend the complaint at an earlier date, in view of the long pendency
i The United States Supreme Court characterized identical rulings under similar circum-
stances as "discretionary rulings which afford no ground for challenging the validity of
the hearing". Consolidated Edison Company of New York, Inc. v. N. L. R B 305 U. S
197, 225.
2 Rules and Regulations of the National Labor Relations Board , Series 3-as amended,
effective duly 12, 1944, Article II, Section 7
THE HILLS BROTHERS COMPANY 1251
of the case, and for the Trial Examiner to have been readier to grant
a somewhat longer adjournment than he did.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, the Hills Brothers Company,
Bartow, Florida, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Food, Tobacco, Agricultural and
Allied Workers Union of America, CIO, or any other labor organiza-
tion of its employees, by discharging or refusing to reinstate any of its
employees, or by discriminating in any other manner in regard to their
hire and tenure of employment, or any terms or conditions of
employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Food, Tobacco, Agricultural and
Allied Workers Union of America, CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities, for the purpose of col-
lective bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Velma Manning, Ludie Weaver, and Alma Staveley,
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges.
(b) Make whole Velma Manning, Ludie Weaver, and Alma Staveley,
for any loss of pay they may have suffered by reason of the respond-
ent's discrimination against them, by payment to each of them of a
sum of money equal to the amount which she normally would have
earned as wages during the period from the date of the respondent's
discrimination against her, to the date of the respondent's offer of
reinstatement, less her net earnings during said period;
(c) Post at its plant at Bartow, Florida, copies of the notice at-
tached to the Intermediate Report, marked "Appendix A". 3 Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof,
3 Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words The Recommendations of a Trial Examiner " and substitut-
ing in lieu thereof the words "A Decision and Order "
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material;
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply therewith.
INTERMEDIATE REPORT
Mr. Mortimer H. Freeman, for the Board.
Mr. Alexander E. Wilson, Jr., of Atlanta, Ga., for the respondent.
Mr. John G. Lackner, of Orlando, Fla., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed October 9, 1945, by Food, Tobacco, Agricultural
and Allied Workers Union of America, CIO, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by its Regional Director
for the Tenth Region (Atlanta, Georgia), issued its complaint, dated October
9, 1945, against The Hills Brothers Company, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices the complaint, as amended during
the hearing, alleges in substance: (1) that on January 9, 1945, the respondent
discriminatorily discharged Velma Manning, and on February 21, 1945, dis-
criminatorily discharged Ludie Weaver and Alma Staveley, because they joined
and assisted the Union; (2) that the respondent, through certain named officers
and supervisors, has disparaged and expressed disapproval of the Union and
has urged and warned its employees to refrain from joining or remaining mem-
bers of the Union; and (3) that by these acts the respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act.
In its answer, verified on October 18, 1945, and amended during the hearing, the
respondent denies that it engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Bartow, Florida, on October 23,
24 and 25, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel,
and the Union by its Regional Director, All parties participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues.
At the opening of the hearing, the Trial Examiner granted a motion made by
counsel for the Board to amend the complaint by adding the name of Velma
Manning to the list of alleged discriminatory discharges.' During the hearing a
IIn granting this motion the Trial Examiner overruled an objection by counsel for the
respondent who contended in effect, that the complaint could not be amended without ten
days' notice . After granting the motion , the Trial Examiner requested counsel for the
Board to introduce no evidence as to the additional alleged discharge until the next day.
Later during the same day , however, counsel for the respondent agreed to permit the
examination of Velma Manning without further delay.
THE HILLS BROTHERS COMPANY 1253
motion by counsel for the respondent was granted, without objection, to amend
the answer to include, among other things, a denial that Velma Manning had been
discharged at any time, and the affirmative allegation that she voluntarily quit
her employment. At the opening of the hearing a motion by counsel for the re-
spondent to make the complaint more specific in certain particulars was granted
in part, and denied in part. Thereafter, in compliance with the ruling, counsel
for the Board amended the complaint to include the names of certain officers and
agents of the respondent alleged to have engaged in certain unfair practices.
After the completion of the taking of testimony the Trial Examiner granted a
joint motion, by counsel for the Board and for the respondent, to conform the
pleadings to the proof in minor particulars. At the close of the hearing, all
parties participated in oral argument before the Trial Examiner. At the close
of the hearing both counsel for the Board and for the respondent waived the
privilege of filing a brief with the Trial Examiner.
Upon the entire record in this case, including the oral arguments, and from
bis observation of the witnesses, the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Hills Brothers Company is a New York corporation, having its principal
office in New York City. At its plant in Bartow, Florida, the only one of its
operations with which this proceeding is concerned, the respondent is engaged
in the processing of citrus fruits and dates, and in the manufacture of ginger-
bread mix. At times it has manufactured fruit bars.
In the course and conduct of its business at its Bartow plant, the respondent
processes, packs and ships annually more than 1,000,000 cases of its products,
valued at more than $500,000, of which more than 50 percent is shipped to points
outside the State of Florida. At the same plant the respondent uses raw mate-
rials and supplies valued at more than $150,000 annually, of which more than
25 percent is obtained outside the State of Florida and shipped to its Bartow
plant.
At the time of the hearing, about 225 employees were engaged at the Bartow
plant operations.'
II. THE ORGANIZATION INVOLVED
Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, is a
labor organization admitting to membership employees of the respondent's Bar-
tow plant.
III. THE UNFAIR LABOR PRACTICES
A. Setting in which relevant events occurred
I Organization of the respondent's employees in 1944, and the election in
February, 1945
Although the respondent has operated in Bartow since 1923 or 1924, there is
no evidence that any concerted efforts toward self-organization were made by its
employees at this plant until the latter part of 1944. In October of that year
two union organizers came to Bartow. These organizers, together with Velma
Manning, an employee, distributed organizing circulars and leaflets at the plant
gates. During November and December self-organization among the employees
intensified. The Union filed a petition for investigation and certification of
2 The findings as to the respondent 's business are based upon admissions in the answer
and a stipulation entered into at the hearing by counsel for the Board and the respondent
and the representative of the Union.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives with the Board on December 12, and a hearing thereon was
conducted on January 12, 1945?
On February 20, 1945, an election among the employees at this plant was con-
ducted by the Board Employees Maxine Dixon and Ladle Weaver served as
observers for the Union at the election. A majority of the employees voted
against the Union as their bargaining representative.
B. Events at issue in these proceedings
1. Summary of the issues
In brief, undisputed events placed in issue by the pleadings include the fol-
lowing: (1) the refusal of the respondent to permit Velma Manning, identified
in the section above, as the leader among employees in organizational activities,
to return to her job, after a brief absence, on January 9, 1945; (2) remarks
before the election by supervisors concerning the possibility of the plant closing ;
(3) the respondent's act in giving time off, and providing food and drink to
employees immediately after the Union was defeated in the election ; and
(4) the respondent's discharge of Ludie Weaver, union observer, and Alma
Staveley, who worked beside Weaver, the day after the election.
2. Threats to discontinue Bartow operations and other anti-union remarks by
supervisors
In October, 1944 and upon a day when leaflets were distributed at the plant
announcing a union mass meeting, Superintendent Roy Lewis told employees
Mortis Payne and Ethel Randall that if the Union "came in", the plant at Bartow
would be closed and operations would be moved to Woodbury, Georgia, where the
respondent has another plant.' At about the same time Lewis also told employee
Mildred Casey that if the Union "went through", the plant would move to
Georgia .5
Foreman Irvin Bass asked Casey how much it cost to join the Union. In
October Bass told Payne, identified above, that he knew the girls who were dis-
tributing union literature, and that they might as well look for other jobs,
because the Company would find some means of letting them out. Bass told
Casey and Velma Manning, who worked together, when the former asked if the
plant would close because of the lack of fruit, that it would do so only if the
Case No. 10-R-1385.
4 The finding rests upon the credible testimony of Payne. Lewis admitted telling Payne
that the plant might close, but denied stating that this would happen because of the Union.
He testified that be told her it would move "on account of the contract being out," and ex-
plained that he was referring to a Government contract covering the production of fruit
bass Lewis further testified that the Government contract "terminated" about the last
of October, although he did not "remember when exactly". The Trial Examiner does not
accept his denial or explanation as valid. Manager C R. May, Lewis' superior and in
charge of Bartow operations, testified that. (1) no contracts were handled or received at
the Bartow plant, but at the New York headquarters, and only "production" orders were
received at Bartow ; (2) he had nothing to do with contracts and did not even know the
Company had had a government contract for fruit bars. In the absence of any reasonable
explanation, the Trial Examiner is unconvinced that Lewis, a subordinate supervisor, had
more knowledge of the Company's contractual affairs in October, 1944, than did the man-
ager of the plant. The respondent offered no documentary evidence, plainly available if It
existed, that any Government contract "terminated" at the time claimed by Lewis. On
the contrary, May testified that while production orders for fruit bars were increased "a
dozen times in the past year", he cited but a single instance of reduction In orders, and
placed that reduction as Qccurring shortly before the election in February, 1945.
5 The quotation is from Casey's testimony, upon which the finding rests. Lewis testified
that he made the same statement to her that he did to Payne. For the reasons set forth
in the footnote above, the Trial Examiner credits Casey's testimony as against that of
Lewis.
THE HILLS BROTHERS COMPANY 1255
Union came in. On the morning of the election, Bass told the girls on the ginger
bread mix line, that he would "give some of them hell" if the Union won s
Three or four days before the election there appeared, upon the only bulletin
board at the plant where management posted notices to employees, pictures of
a union official, a Negro ; one of such pictures showing him as a convict, with
a number superimposed upon it. Some of the girls complained to Supervisor
Collins about the posting of such material, but Collins permitted it to remain
throughout that shift, declaring that she had not put it up and would not take
it down.'
3 Management provides "celebration" after Union is defeated in election
Immediately after the ballots were counted on the night of February 20,
1945, establishing that the majority of the employees had voted against the
Union, management permitted employees to blow the plant whistle for five or
ten minutes. All operations of the night shift were halted for an hour. Liquor
was consumed by employees on the premises. During the hour's recess all
employees were permitted to obtain whatever they wished at a restaurant on
the respondent's property, at the Company's expense. The night shift closed
down about three hours earlier than usual, and employees went home. The
next morning the day shift was also given an hour's recess by Manager May
and all employees were again permitted to visit the restaurant at the Com-
pany's expense. Employees were paid in full by the respondent for the time
lost from production, both during the night and the day after the election'
Foreman Bass, on the morning after the election, told employees to take an
hour off and go to the lunch room. As a witness, Bass admitted, in effect, that
the "celebration" was because the Union had lost the election. It is reasonably
inferred, and therefore found, that employees generally interpreted the re-
spondent's gift of pay, food and drink, not only as an expression of its approval
of the Union's defeat in the election, but also as an expression of management's
disapproval of further efforts toward self-organization.
4. The discriminatory discharge of Velma Manning
(a) Events relating to the discharge
Sometime in October, 1944, Velma Manning's little boy cut his leg. It became
infected and he was hospitalized. During November and December Manning
E The findings as to Bass' remarks rest upon the credible testimony of Casey, Payne,
Manning and Weaver Bass denied having made any of these remarks. The respondent's
antipathy toward self -organization of its employees is amply established by the celebration
it financed after the Union 's defeat , as described fully hereinafter . In his testimony Lewis
admitted that employees generally were informed that the "plant might shut down" And
as described hereinafter , Lewis promptly discharged employees Weaver and Staveley the
day after the election , after Bass reported to him that girls opposed to the Union had
declared they would not work with Weaver and Staveley. In view of these facts, and the
foregoing findings that Lewis also made anti-union remarks, the Trial Examiner finds that
Bass was reflecting, by his questioning of Casey and statements to other employees,
management ' s disapproval of self-organization among the workers.
4 That these pictures were posted on the company bulletin board and that Collins
refused to remove them after complaint had been made to her is undisputed . Although
the exact title of Collins is not revealed by the record , counsel for the respondent neither
challenged nor offered evidence to rebut the testimony of employee Dixon that Collins was
a supervisor under Night Foreman Wilson . The Trial Examiner finds that Collins was a
supervisor , and occupied a position wherein she reflected management policies, and that
her refusal to remove , or have removed, the pictures was reasonably interpreted by
employees as indicating management ' s approval of its posting
e The findings as to this celebration rests upon the undisputed testimony of several
employees , some of whom were witnesses called by the respondent.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took several days off to care for him. Supervisors were aware that she was
absent for this purpose. When the plant closed for a few days at Christmas,
Manning went to Miami with her boy, among other reasons, to arrange for the
sale of her house there. She did not ask for permission to be absent after
Christmas, and did not return to the plant until January 9, 1945, several days
after it had reopened. When she reported for work that day she was denied
entry to the plant by the gateman, who told her he had received instructions,
the week before, not to let her in. Manning communicated with John Lackner,
a union official, and he came at once to the plant. Together Manning and
Lackner went to Manager May, and asked why she was not permitted to work.
May told her that they did not know she was coming back and that her position
had been filled. Manning told May that she would take any job in the plant.
The manager replied only that he would let her know later. He never com-
municated with her thereafter, despite the fact that at the hearing counsel
for the respondent conceded that on January 9, 1945, and for many weeks there-
after, there had been vacancies which Manning could have filled.
(b) The respondent 's contentions as to Manning
In its amended answer the respondent claims that Manning voluntarily ter-
minated her employment before December 26, 1944. In oral argument before
the Trial Examiner, counsel for the respondent stated :
. . . when the Company officials found out that she had completely deserted
the job and gone to Miami on this business jaunt, they did see fit to discharge
her, or, rather, not to reinstate her when she came back . That is the whole
case.
The respondent offered no evidence to support either the claim that she quit on
December 23 or that she was either discharged or refused reinstatement on
January 9. May's testimony as to his office interview with Manning and Lackner
on January 9 is quoted below in full :
. . . Mr. Lackner and she came over and discussed-I don't know exactly
what it was on-I think she wanted to know why she couldn't go to work.
And I told her that I didn't know much about it. And I asked her how long
she'd been gone, and she said, as I remember, a week ; two weeks ; something
like that. And I says, "Well, the place probably has been taken, filled ; her
place on the cellophane machine." I believe that was what she was doing.
And I don't know. Mr. Lackner said something-I don't recall what the con-
versation was-something about why we did not put her to work. But I
said I didn't know much about the case. As a matter of fact, that she had
been gone-just left-a couple of weeks.
Q (Counsel for the respondent) Did you tell her that you would check
into the case?
A. Yes. I told her that I would check into the case and find out more
about it
Q And did you?
A. At that time Roy Lewis was in Georgia, I believe. I don't know whether
he had come back from Georgia or not. And I didn't do it then. I don't
know whether I followed on any farther than that, or not. I don't remember
that I did.
On cross-examination May admitted that he did not ascertain whether or not
there was a job open for her on January 9.
Lewis flatly denied that he left any instructions for Manning to be barred from
the plant, or from returning to her job. Both Lewis and May denied that any
THE HILLS BROTHERS COMPANY 1257
employee has ever been discharged by them for being absent without notification
to the Company.
It is clear, and the Trial Examiner finds, that the testimony of May and Lewis
refutes the claim that Manning was either refused reinstatement or discharged
on January 9 because she had "deserted" her job.
The claim in the respondent's answer that she voluntarily quit is refuted by
testimony elicited by counsel for the respondent from employee Mildred Casey,
when called as a witness for the respondent. Casey, who is Manning's niece and
worked beside her at the plant, testified that a couple of days after the Christmas
recess Lewis inquired about Manning's absence Casey told him that her aunt
had said something about going to Miami, but she would check and find out. The
next day, according to her testimony, she reported to Lewis that Manning had
gone to Miami, and was supposed to be back that Wednesday. Also according to
Casey's testimony, Lewis said nothing about filling Manning's job, but assigned
to Manning's work one of the two or three "extra" girls who were always at the
plant to help out whenever some employee was absent. This extra girl continued
to help Casey until June, 1945.
Thus it is clear, and the Trial Examiner finds, that Manning did not quit and
that management did not receive information concerning her absence which would
reasonably lead it to believe that she had quit her employment.
From evidence adduced by the respondent itself the Trial Examiner concludes
and finds that there is no merit in either contention advanced by it as to the
reason for not permitting Velma Manning to resume her work on January 9, 1945.'
(c) Conclusions as to Manning
As noted heretofore, Velma Manning was the leader among the respondent's
employees in their efforts to self-organize in the Union. Superintendent Lewis,
as a witness, admitted knowing that Manning was the union's "representative"
at the plant, and that he had seen her distributing union pamphlets.
Management's hostility toward union organization among employees at the
Bartow plant has been established by many events described above. The Trial
Examiner is convinced that the refusal to permit Manning to resume her work
on January 9, 1945, at a time when the respondent admittedly needed her serv-
ices, was of a pattern with its anti-union campaign, and was a materialization
of Bass' threat to the effect that the Company would find some way to "let out"
the girls who distributed union literature. It is further found that the respond-
ent's refusal to permit Manning to resume work on January 9 was, in effect, a
discriminatory discharge because of her union leadership.
5. The discriminatory discharges of Ludie Weaver and Alma Staveley
(a) Events relating to the discharges
As noted heretofore, Ludie Weaver was a union observer at the Board election
on February 20, 1945.
' Near the close of the hearing counsel for the respondent introduced into evidence a
record of Manning's absences from April, 1944 to the last of December of that year. The
Trial Examiner considers that this record is without bearing upon the issues . No manage-
ment witness testified that it was the basis for refusing to permit her to resume work on
January 9 , or that it was even considered in this connection . It is not comparative, and
does not show whether Manning was absent more or less frequently than any other em-
ployee. Office Manager Cammann , who drew up this record during the hearing upon
May's instructions, admitted that the document did not show whether the absences were
voluntary on the part of Manning or were required by the respondent.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For many years an employee of the respondent, at the time of the election
Weaver was working beside Alma Staveley in a line of several employees who were
filling bags with gingerbread mix, sealing the bags, inserting them into packages
or boxes, packing the packages into cases, and gluing the cases for shipment.
From the evidence it appears that all employees in this line were girls except
one man, who, at the end of the line, glued the filled cases. On the day after
the election Weaver was the first in the section of five girls who were "boxing"
the bags of mix, which were carried to them by a conveyor belt after the bags
were "heat-sealed " Staveley was stationed next to Weaver, and then three other
employees in line.
On the morning of February 21, Weaver and Staveley worked until about
noon, with the exception of the hour's recess for the "celebration" heretofore
described. At about noon, Lewis called Weaver and Staveley from the depart-
ment and asked them to resign, telling then that they were " causing too much
disturbance about the Union."" They refused to resign, returned to the produc-
tion line and worked until 12: 30, the beginning of the lunch hours When they
went out for lunch, their time cards were missing from the rack, and the time-
keeper told them they had been checked out. The gate-keeper then took from
them their identification badges, and gave them their pay and releases. Both
relases stated: "Discharged for causing disturbance among employees." Weaver
went to May's office, showed the manager the release, and informed him that
Lewis had told them they were causing too much disturbance about the Union.
May replied that he knew nothing about the discharges, but would talk to Lewis
about the matter. May did not communicate with her thereafter
(b) Contentions of the respondent as to the discharges
In its amended answer the respondent admitted that Weaver and Staveley
were discharged but alleged no reason therefor. At the hearing no credible
evidence was adduced to show that either Weaver or Staveley had ever caused
"disturbance among the employees," as stated upon their releases. In his oral
argument, counsel for the respondent claimed that on the morning of February 21,
Weaver and Staveley both refused to work and refused to do their work properly,
and that therefore they were discharged
As to their work that morning, a great deal of confused, inconsistent and con-
flicting testimony was elicited from witnesses for the respondent, and is sum-
marized below.
Reba Cone, wife of Foreman Cone of the same plant, worked on the heat-sealing
machine in the gingerbread mix line above described. She testified on direct-
examination that immediately after the shift began, on the morning of February
21, Weaver refused to take from the conveyor belt the bags of mix which came
to her from the sealing machine, thereby causing the belt to clog or "back up"
After the hour's celebration, from nine until ten o'clock, Weaver continued to
refuse to "unhang" the bags, according to Cone. She further testified that she
complained to Foreman Bass both before and after the recess, and that she saw
him speak to Weaver immediately after receiving the complaint. The foreman's
wife admitted, on cross-examination, that she was opposed to the Union and that
she knew Weaver had represented the Union at the polls the day before. She
also testified that Weaver had previously caused the same trouble on the line,
and that she had complained to the foreman about it. On this point, her testi-
10 Lewis did not specifically deny having made this statement to them. His version of
the final interview is discussed hereinafter For the reasons hereinafter indicated the
undersigned credits Weaver upon whose testimony this finding is made.
THE HILLS BROTHERS COMPANY 1259
mony is flatly contradicted by Foreman Bass, who stated that he had never
heard any complaints about either Weaver or Staveley until the morning of
February 21. Cone admitted that she had discussed the case with her husband,
a foreman, before appearing as a witness.
Employee Mae Best, who worked on the same line about 25 feet from Weaver,
also testified that the "gingerbread hung up on the line" after it left Cone's seal-
ing machine that morning and that she saw Bass speak to Weaver According
to Best, after Bass left, the bags "hung up" again, and she declared that only
Weaver could have been responsible for this condition, because she was the
first in the line of the boxers, and it was her job to take them from the conveyor.
Best admitted that although she had joined the Union, she had changed her mind
about it, having received through the mail, from an unidentified source, informa-
tion that the Union was connected with Negroes. She also admitted that she
"celebrated" when the Union lost the election.
Employee A. A, Griffis, the man who glued the packed cases at the end of the
line, testified that lie complained to Bass, either on February 20 or 21, that
Weaver was pushing the bags of mix so far into the cardboard containers that
the boxes bulged, thereby preventing them from fitting properly into the cases
which he had to glue. Although he first testified to the effect that only Weaver
thus packed the boxes, later he stated that he saw both Weaver and Staveley
doing so. Griffis testified that this condition developed frequently and had existed
for "quite awhile," but that he had never complained about it until that day.
He also testified that the same condition "occasionally" existed at the time of
the hearing, many months after Weaver and Staveley had been discharged Griffis
admitted that he knew Weaver was an ardent supporter of the Union, and that
he "certainly" took part in the celebration of the Union's defeat at the election,
because he was opposed to it.
Employee Luke Wilson, self-described as "general flunky" for everybody in
the gingerbread department, testified, after repeated questioning by counsel for
the respondent, that Weaver called him a "son-of-a-bitch" on the morning of
February 21. He did not so testify, however, until he had first denied : (1) that
he had had any conversation with Weaver that morning; (2) that she had had
any conversation with him; and (3) that she had said anything to him that morn-
ing On cross-examination, Wilson answered 27 questions, about matters which
reasonably should have been within his knowledge, by stating "I don't know"
or "I don't remember." He testified that he knew of no explanation for the
alleged name-calling, stating only that he came in that morning "smiling and
laughing ; happy," and Weaver "just up and cussed me out." Having observed
the witness while on the stand, the Trial Examiner can place no reliance upon
his contradictory testimony, and finds that Weaver made no remark of this
nature to Wilson that morning
While being examined by counsel for the respondent, Bass testified that he
jeceived a complaint, on the morning of February 21, not only from Cone, but
also from the girl who filled the bags, and that such complaints were to the
effect that the line was jammed He stated that he could not identify the girl
who filled the bags, and no witness performing this operation was called to testify
on this point. Bass further testified that Cone came to him later and told him
"the whole bunch were going to quit if something wasn't done with Mrs Staveley
and Mrs Weaver." He also testified, however, that he made several visits to the
room to check on their work, and that whenever he did so "everything" was
running "fine" Also according to his testimony on direct-examination, the only
remark he made to Weaver and Staveley that morning was after Griffis com-
plained to him about boxes bulging, and that he then asked them to "txy to put
them bags in straighter." Griffis testified that right after he had spoken to
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bass, he "didn't have near as much trouble." Although admitting that he had
never reprimanded either Weaver or Staveley before that morning, he went to
Lewis sometime during the shift, according to his testimony, and told the super-
intendent that "the whole bunch was going to knock off if something wasn't done
with Mrs. Staveley and Mrs. Weaver." As to the incident described by Luke
Wilson, Bass testified that the flunky had only told him lie "done had a run-in"
with Weaver that morning, but that he, himself, had seen no altercation between
them.
While being cross-examined Bass stated that Cone complained to him at about
8: 30 or 8: 45 a. in. that the line was jammed. He testified that he at once went
in to inspect the line and found "everything . . . fine." He went back into the
"kitchen," and looked in again on the line 15 or 20 minutes later , and again
found the line all right. But the third time, from 15 to 30 minutes after the
second occasion, he found the line jammed. When it was pointed out that the
third occasion would have fallen within the period of "celebration," when no
girls were working, Bass promptly said it might have been 5 minutes later. Also
on cross-examination he denied and then reaffirmed his previous testimony that
Cone had told him the girls would quit if something were not done with Weaver
and Staveley. Finally, Bass admitted that it was his "idea" to try to catch
Weaver and Staveley that morning with the mix backed up, and that he would
I hen tell Lewis that something had to be done about them.
According to Lewis' testimony, Bass reported to him between 8: 30 and 9: 00
o'clock that Weaver and Staveley "wouldn't unhang the bags." He testified that
thereafter he himself, watched the line, and found them doing "pretty good," but
that about 10:30 Cone told him Weaver and Staveley were still "letting them
hang up." Upon her complaint, he testified, he asked the two employees to re-
sign, and when they refused, he "went out and had them releases made up "
The language of the releases, however, states that they were discharged for
"causing disturbance among employees" and not because of their unsatisfactory
work. This corroborates Weaver's testimony, heretofore found, that Lewis had
requested their resignations because they were "causing too much disturbance
about the Union."
The testimony of Cone, Best, Griffis, Bass and Lewis, summarized above, is so
replete with contradictions and inconsistencies, that the Trial Examiner can
place little reliance upon any of it. It fails to reveal exactly what did happen
on the line with respect to the "unhanging of the bags." The testimony of Bass
and employees on the line makes plain, however, the fact that Staveley had
nothing to do with "unhanging" the bags, and that Weaver, who was the first in
the line of boxers, was the only one with that duty. Thus, Staveley's discharge
remains wholly unexplained by the respondent, as to any matter regarding her
work, thereby casting further discredit upon the validity of the reasons urged
by counsel for the respondent to justify the discharge of Weaver.
From the welter of confused testimony of the above-named witnesses there
emerge certain clearly defined facts, including : (1) the expressed hostility
toward the Union of Cone, Best and Griffis; (2) the threat of Cone, wife of a
foreman, to management that the other girls would not work with Weaver and
Staveley; (3) Bass' admitted efforts to "catch" Weaver and Staveley in order
to report them to Lewis; (4) Lewis' prompt discharge of the two upon Cone's
demand; and (5) the failure of the respondent to establish that either Weaver
or Staveley created any disturbance, refused to work, or did not work properly
that morning."
11 Lewis testified that he knew nothing about any complaint Griffis may have made about
the manner in which Weaver and Staveley packed the bags into the boxes that morning. It
follows and the Trial Examiner finds that this subject had no bearing upon the discharges.
THE HILLS BROTHERS COMPANY 1261
The Trial Examiner finds that there is no credible evidence in the record to
support contentions advanced by the respondent 's counsel , or the statement
appearing upon the employees' releases, as to why Weaver and Staveley were
discharged on February 21, 1945.
(c) Conclusions as to the discharges
Both Ludie Weaver and Alma Staveley were employees of long service at
the respondent's plant, Weaver having begun work there in 1937 and Staveley
having even greater seniority. As noted in the preceding section, their foreman
admitted that there had never been any complaint about their work until the
day of their discharge.
It has likewise been found: (1) that there was, and could have been, no
factual basis for any complaint about Staveley's failure to "unhang" bags on
February 21, since it was not her job to do so , (2) that neither Bass nor Lewis
witnessed any dereliction, on the part of Weaver, of sufficient importance to
reprimand her about it; and (3) that the evidence does not support any of
the reasons advanced by the respondent for discharging either Weaver or
Staveley.
From the facts noted heretofore, the Trial Examiner concludes and finds that
Lewis' discharge of the two employees was of a pattern with the respondent's
campaign to discourage self-organization among the employees. Weaver was
a union observer at the election held on the respondent's premises the day before
her discharge and the Trial Examiner finds that the respondent was aware of
this fact. She had previously "talked" the Union while on the job. Staveley
was ill at the time of the hearing. she was not a witness, and there is no evi-
dence in the record of her union membership or activity. However, in view of
the fact that Cone, admittedly opposed to the Union, complained to Lewis that
she and others would no longer work with Weaver and Staveley, it is reasonable
to infer and is therefore found that Cone and management believed that Staveley,
who worked beside Weaver, was also a union member. That Cone and others
made this threat after the election, and not before, is reasonably explained by
the encouragement for such anti-union action inherent in the respondent's open
celebration of the Union' s defeat.
Finally, as found heretofore, Lewis asked for their resignations and told them
they were causing disturbance "about the Union."
The Trial Examiner is convinced, and finds, that Weaver and Staveley were
discriminatorily discharged on February 21 to discourage union membership
and activity.
6. Conclusions in general
In summary, the Trial Examiner concludes and finds that the respondent has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, by: (1) its threats to close the Bartow plant
if the Union "came in"; (2) the anti-union remarks of Bass; (3) the action
of Collins in permitting pictures in disparagement of the Union to remain posted ;
(4) permitting and financing the "celebration" of the Union's defeat in the
Board election; and (5) discriminatorily discharging Velma Manning, Ludie
Weaver and Alma Staveley.
12 Employers who discharge workers at the request of other employees opposed to their
union activities have been held in violation of Section 8 (3) of the Act by the Board and
the Courts See N. L. R. B. v. Star Publishing Company , 97 F. (2d) 465 (C C A 9) ;
it. L R. B . v. Hudson Motor Car Company , 128 F (2d) 528 (C. C. A. 6 ). Cf. McQuay-
Norris Manufacturing Company v. N . L. R. B., 116 F. (2d) 748 (C. C. A. 7).
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent, set forth in Section III, above, occurring
in connection with the operation of the business of the respondent described in
Section I, above, have a close, intimate and substantial relation to trade, traffic
and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent discriminated as to the hire and tenure
of employment of Velma Manning on January 9, 1945, and of Ludie Weaver and
Alma Staveley on February 21, 1945. In order to effectuate the purposes and
policies of the Act, it will be recommended that the respondent offer Velma
Manning, Ludie Weaver and Alma Staveley immediate reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
and other rights and privileges. It will also be recommended that the respondent
make each of the above-named employees whole for any loss of pay she has suf-
fered by reason of the respondent's discrimination against her, by payment to
her of a sum of money equal to the amount she normally would have earned as
wages from the date of the discharge to the date of the offer of reinstatement,
less her net earnings during this period."
The recommendation that the respondent cease and desist from certain unfair
labor practices is also predicated upon the following findings : The respondent's
whole course of conduct and, in particular, the discharge of Manning, Weaver, and
Staveley, discloses a purpose to defeat self-organization and its objects among
the employees As the Circuit Court of Appeals for the Fourth Circuit has stated,
the "discriminatory discharge of an employee . . . goes to the very heart of the
Act." " Because of the respondent's unlawful conduct and its underlying pur-
pose, the undersigned is convinced that the unfair labor practices found are
persuasively related to the other unfair labor practices proscribed, and that
danger of their commission in the future is to be anticipated from the respondent's
conduct in the past." The preventive purpose of the Act will be thwarted unless
the recommended order is coextensive with the threat. In order, therefore, to
make more effective the interdependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices, and thereby to minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the respondent cease and desist from in any
manner infringing on the rights guaranteed in Section 7 of the Act.
13 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for her unlawful
discharge , and the subsequent necessity for seeking employment elsewhere . See Matter of
Crossett Lumber Company , 8 N L R B 440 . Monies received for work performed upon
Federal , State, county , municipal , or other work -relief projects shall be considered as
earnings See Republic Steel Corporation v. N. L. R. B. , 311 U. S. 7.
14 N. L R B v Entwistle Manufacturing Company, 120 F. ( 2d) 532, 536 (C. C A 4) ;
see also, N . L. R. B. v . Automotive Maintenance Machinery Company, 116 F. (2d) 350, 353
(C C A 7 ), where the Circuit Court of Appeals for the Seventh Circuit observed "No
inure effective foiin of intimidation nor one more violative of the N. L. R Act can be con-
ceived than discharge of an employee because he joined a union
15 N L R. B v. Express Publishing Company, 312 U S. 426.
THE HILLS BROTHERS COMPANY 1263
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAw
1. Food, Tobacco, Agricultural and Allied Workers Union of America, CIO,
is a labor organization within the meaning of Section 2 ( 5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Velma
Manning, Ludie Weaver and Alma Staveley, thereby discouraging membership
in Food, Tobacco, Agricultural and Allied Workers Union of America, CIO, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning, of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the Trial
Examiner recommends that the respondent, The Hills Brothers Company, its
officers, agents, successors, and assigns shall
1. Cease and desist from :
(a) Discouraging membership in Food, Tobacco, Agricultural and Allied Work-
ers Union of America, CIO, by discriminatorily discharging or refusing to rein-
state any of its employees, or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing, its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Food, Tobacco, Agricultuial and Allied Workers Union
of America, CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection as guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act:
(a) Offer to Velma Manning, Ludie Weaver and Alma Staveley immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority and other rights and privileges ;
(b) Make whole the above-named employees for any loss of pay they may
have suffered by reason of the respondent's discrimination against them by
payment to each of them of a sum of money equal to that which she would
normally have earned as wages but for the respondent's discrimination against
her, in the manner set forth in the Section entitled "the remedy" ;
(c) Post at its plant in Bartow, Florida, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director of the Tenth Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able steps shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Tenth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps the
respondent has taken to comply herewith
It is further recommended that unless on or before ten (10) days from the re-
cceipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Sectiou 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944, any
party or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32 of
Article II of said Rules and Regulations, file with the Board, Rochambeau Build-
ing, Washington 25, D. C., an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part of
the record or proceeding (including rulings upon all motions or objections) as
he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or brief,
the party or counsel for the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As fur-
ther provided in said Section 33, should any party desire permission to argue orally
before the Board, request therefor must be made in writing within ten (10) days
from the date of the order transferring the case to the Board.
C. W. WHITTEMORE,
Trial Examiner.
Dated November 21, 1945.
"APPENDIX A"
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist Food, Tobacco, Agricultural and Allied Workers Union
of America, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Velma Manning
Ludie Weaver
Alma Staveley
THE HILLS BROTHERS COMPANY . 1265
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
THE HILLS BROTHERS COMPANY,
Employer.
Dated ------------------- BY --------------------------------------------
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in ac-
cordance with the selective service act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced , or covered by any other material.
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